Emergency: How Indira Gandhi made most controversial change to India’s Constitution

On June 25, 1975, a state of Emergency was declared in India. In this series, we are looking at some of the most debated, and far-reaching amendments that were introduced in the Indian Constitution in the past 73 years. In the previous episodes, we learnt how amendments are brought about, the First amendment in 1951, just a year after the Constitution was adopted, as well as the running friction between the judiciary and Parliament over who was the voice of our Constitution.The most controversial amendmentIn this episode, we will look at the 42nd Amendment, perhaps the most controversial amendment added to the Constitution. It was introduced by Indira Gandhi in the year 1976. It got a lot of flak but remained in effect till 1978 when the Janata Party came to power. In fact, some of the changes introduced in the 42nd amendment remain till date.This is what Subhash Kashyap, renowned Constitutional expert and the former Secretary-General of the 7th, 8th and 9th Lok Sabhas, had to say:“Two things remained. One, change in the preamble, socialism, secularism, and unity and integrity of the nation that still remains a part of the constitution. Also, their fundamental duties didn’t change.” But we’re putting the cart before the horse! Let us first look at the years leading up to the Emergency and the enactment of the 42nd Amendment.In the years leading to 1975, PM Indira Gandhi was committed to an increasingly socialist economic agenda. In pursuit of that, her government went bullish on the nationalisation of banks, coal mines and other resources. The laws passed came under frequent judicial criticism, with some of the high courts and the Supreme Court striking them down.The economic agenda continued though. 24th, 25th and 29th amendments in 1971Mrs Gandhi’s government moved the 24th, 25th and 29th amendments in 1971, all of which curtailed Fundamental Rights in some way, especially the right to property and trade. In the same year, the 26th Amendment abolished the privy purses, despite the promise that the Jawaharlal Nehru government and Sardar Patel had made to over 500 princely states for acceding to India. In 1971, Raj Narain, a political opponent to Indira Gandhi in the Rae Bareilly Lok Sabha seat, filed a case in the Allahabad high court, alleging electoral malpractices including misuse of the government machinery. The case went on for four years. In 1975, the Allahabad high court found the PM guilty. As the case was appealed to the Supreme Court, the political opposition started anti-government protests. A massive rally was organised in the capital, Delhi, demanding that Indira Gandhi resign from the PM office. On June 25, an Emergency was declared across the country, citing ‘internal disturbance’ as the reason. The Emergency lasted 21 months.Here’s what Sanjiv Sen, senior lawyer and a well-known jurist, said on the political atmosphere leading up to the 42nd Amendment:“After his defeat, Raj Narain filed a case against the PM for election fraud and usage of state machinery in carrying out her election campaign. The charges were filed in Allahabad High Court and Prime Minister Indira Gandhi, in the first ever of such instances had to appear before the court. The Allahabad high court in 1975 delivered a judgement finding her guilty of misusing police and government officers for the party election campaign. Henceforth, her election was declared null and void and she was banned from contesting in the elections for the next six years. Later in the SC, the political opposition initiated anti-government protests. Mr Jayprakash Narain organised a massive rally in the capital city, demanding the PM resign. On June 25, 1975, an emergency was declared by the government across the country.”The introduction of 39th, 41st, and 42nd AmendmentsThe years from 1975 to 1977 saw the Indira Gandhi government introduce some of the most controversial amendments, including the 39th Amendment, which said that elections of the president, vice-president, prime minister and speaker of the Indian Parliament could not be questioned in a court of law. The 41st amendment thereafter prohibited any civil or criminal proceedings against the president, vice-president, prime minister and all governors. The 42nd amendment was enacted by the 5th Lok Sabha. The amendment, according to Sanjay Hegde, a well-known lawyer and constitutional expert, was far-reaching.“The 42nd amendment was delivered by parliament during the emergency. It sought to change the form of government where the PM’s office became more powerful. This meant that the Prime Minister and other high dignitaries could not be challenged in any court. And as a consequence, the normal libertarian instincts of the constitution were greatly suppressed by the 42nd Amendment. The 42nd Amendment made changes to the Preamble of the Constitution, 40 Articles, the Seventh Schedule and added 14 new Articles.The amendments were so sweeping, that some people called the 42nd Amendment a “mini-Constitution”. Sanjay Hegde explains why:“It amended a lot of things, and its length and the way it came, it sought to change the constitution, it’s called the mini-constitution.”In March 1977, the Indira Gandhi government was voted out, and the Janata Party with Morarji Desai at the helm was sworn in. This government lost no time in repealing many of the features introduced by the 42nd Amendment. As Subhash Kashyap points out:“What can be said is that it made some fundamental changes to the Constitution and many of them were found to be undemocratic changes against the constitutional structure of the country. They were undone by the subsequent amendments 43rd and 44th.”So did the 42nd Amendment make Parliament supreme and give it unlimited powers to amend the Constitution? No. In July 1980, in the Minerva Mills versus Union of India case, the petitioner challenged Section 55 of the 42nd Amendment, which under Article 368 gave Parliament unlimited powers to amend the Constitution. The Supreme Court unanimously struck down these amendments to Article 368, saying that judicial review and a limited amending power were basic features of the Constitution – which as we remember from our episode on the Keshavananda Bharti case, cannot be altered.The idea was that when a genie gives you three wishes, you cannot ask that one of those wishes be an unlimited number of wishes!It was the judgement from the Keshavananda Bharti case that established the democratic contours, and remains relevant till today, says Sanjay Hegde.“Of course, it is relevant. It has probably held the country together over the last 40 odd years since it has been delivered. Curiously enough, it was delivered on April 23, 1973, the same day that Sachin Tendulkar was born. Two things that sort of brought the whole India together, came to be delivered the same day.”Audio Production: Prateek Kapoor